The Shifting Drug War

Not long ago, Christie Donner was seen as a fringe figure in state politics, advocating unpopular changes in the stern laws that form the centerpiece of Colorado's part in the nation's War on Drugs.

Donner, director of the Colorado Prison Moratorium Coalition, argues that Colorado's prison-building boom has been an expensive mistake. Her belief that Colorado chooses to imprison thousands of drug addicts while failing to adequately fund drug treatment programs is at odds with the rhetoric of politicians who promise to get tough on drugs.

But now Donner is at the center of a campaign to change the drug laws in Colorado to emphasize treatment, rather than prison time, for addicts.

"The public doesn't feel it's effective to put drug addicts in prison," says Donner. Just locking up drug offenders for mere possession is "not dealing with drug abuse as a health problem."

"So many people have histories of abuse and untreated mental illness, and they use drugs to cope," she continues. "Why can't we help these people turn their lives around?"

While the number of prison inmates in Colorado has more than doubled in the past decade, to more than 15,000 last year, Colorado spends little to treat drug addicts behind bars or on the streets. Even though an estimated 75 percent of inmates have substance-abuse problems, only half of them receive treatment. Outside of prison, treatment options are even more scarce. Colorado spends less money on substance-abuse treatment than most states; as a result, only 20 percent of those who need treatment receive it.

Today in Colorado, there are 3,226 people in state prisons on drug charges. Of those, 1,714 inmates -- just over half -- were convicted of drug possession. And sentences aren't mere slaps on the wrist. For example, someone arrested with even a tenth of a gram of an illegal drug can be charged with a Class 3 felony, the same as for armed robbery and sexual assault. It costs the state more than $44 million per year just to keep those 1,714 drug users behind bars.

But effective treatment programs can do more than just save money. Some states have found that comprehensive treatment of those arrested on drug charges also reduces the rate of recidivism by 25 to 30 percent. In addition, says state senator Ken Gordon, "If you can get somebody off drugs, they won't commit the ancillary crimes they do to support their habit."

Gordon is sponsoring groundbreaking legislation that would alter the penalties in Colorado for those convicted of possessing less than one gram of an illegal drug. Instead of receiving mandatory prison sentences for a first offense that can range from four to sixteen years, users would be directed into drug treatment programs. The money the state would save could support both public and private treatment programs. Gordon estimates the law would keep a hundred people per year out of state prison, freeing up $2.6 million that could be used to treat hundreds of addicts.

The bill was recently okayed by a joint legislative committee studying criminal sentencing in Colorado and will be considered by the full legislature next year. And lawmakers are expected to pay attention. With prison costs taking up an ever larger share of the state budget, some legislators question whether the enormous amount of money going to pay for the prosecution and imprisonment of drug offenders is being spent wisely. Since the TABOR amendment to the state constitution restricts the growth of the state budget, more money going into prisons means less money for schools, health care and other needs.

"In 1981-82, the corrections budget was $39 million. Now it's $478 million," says Gordon. "The corrections budget has increased at a 15.3 percent rate every year for the last decade. We're incarcerating some people we don't need to."

Gordon worked hard to win support for his legislation from Colorado's district attorneys, a majority of whom endorsed the bill. Denver District Attorney Bill Ritter and Adams County District Attorney Bob Grant both testified in favor of the proposal.

"The main impetus for me is our present inadequate treatment resources," says Ritter. "There are places in this state where there is no treatment available."

Several Republicans on the committee joined Democrats to back the bill, but Gordon still isn't certain he will win the support of a majority of legislators or of Governor Bill Owens. So far, the governor has proved hostile to the idea of changing state drug laws.

Wadhams says it's almost unheard of for someone to receive a prison sentence for a first-time charge of possession. He says most of the people in prison for possession have been arrested more than once and have often committed other crimes, such as burglary, to support their habit.

"It's difficult to be sentenced to prison in Colorado," says Wadhams. "The actual conviction may be for drugs, but there's usually a lot of other things involved as well. The governor doesn't believe that there are people in prison who have been found guilty of possession just one time."

Wadhams says the governor hasn't taken a position on Gordon's bill, but he makes it clear that Owens is wary of the idea of shifting drug-law violators out of prison and into treatment. He says the declining crime rate in recent years is proof that locking people up makes the streets safer.

"As incarceration has increased, crime has gone down," says Wadhams. "When people wind up in prison in Colorado, there's a good reason for it."

Gordon probably won't be able to get his bill through the legislature, predicts state senator Ken Arnold of Westminster.

"It might pass in the Senate, but I don't think it has much chance in the House," says Arnold, who voted against the proposal in committee.

Arnold believes Colorado's current sentencing laws are appropriate and have helped to reduce the crime rate. He also says many drug addicts don't want to be treated.

Politicians in Arizona and California were similarly hostile to the idea of changing their state laws, but that didn't stop voters from approving initiatives that are far more radical than what Gordon has proposed. Both of those states now mandate treatment for most drug offenders and have largely scrapped prison sentences for simple possession. In California alone, an estimated 30,000 drug offenders per year will be diverted from prison into treatment programs, saving the state as much as $250 million per year in prison costs.

Last year, California voters approved Proposition 36, which requires that anyone convicted of simple possession of an illegal drug be sent to treatment instead of prison. The measure, which passed with 61 percent of the vote, appropriates $120 million annually for treatment services. State analysts estimate that California will save $500 million in prison construction costs as a result of the new law.

The California law took effect July 1, so it's still too early to judge its effectiveness. Many people assumed treatment centers might be overrun, but so far, that hasn't happened. One surprise has been the number of hardcore drug addicts willing to follow through on treatment. Many of them lead chaotic lives with the added problems of mental illness, unemployment and homelessness. These people will likely require expensive residential treatment before they can turn their lives around, and it's not clear whether resources will be available for that.

Arizona's law has been on the books since 1998 and has had a dramatic impact. After the state's conservative legislature refused to modify harsh sentencing laws, activists went to the voters with an initiative that called for mandatory probation and treatment for those convicted of possession. The initiative passed with 57 percent of the vote.

The law finances treatment through a tax on alcohol, with half of the revenue going to a parents' commission to run drug prevention and treatment programs. In the first year, an estimated 2,622 people convicted of drug possession were placed in treatment, saving Arizona more than $5 million in prison costs. A subsequent study of the law's impact by the Arizona Supreme Court found that 76 percent of those ordered into treatment stayed drug-free while in a program, but only about 35 percent of participants were successful in giving up drugs entirely.

The success of these initiative campaigns in other western states has inspired local activists. Colorado voters have already joined voters in seven other states and passed laws allowing the use of marijuana with a doctor's recommendation to relieve pain experienced by those suffering from cancer, glaucoma, AIDS, multiple sclerosis and other conditions. Since those laws contradict federal marijuana laws, the implementation is still being sorted out in the courts.

Donner says that if legislators don't change Colorado's drug-possession laws, her group is prepared to take a proposal directly to the voters.

"It's certainly something we're looking at," she says.

In a sign that Donner's group is becoming more political, it recently commissioned a poll of Colorado voters by the Ridder/Braden consulting group. That poll found that 83 percent of Coloradans believe we are losing the War on Drugs, and 85 percent agreed with the idea that current policies don't attempt to solve the underlying causes of drug abuse. Fifty-nine percent of voters polled said that drug addiction should be viewed primarily as a health problem, and 74 percent supported greatly increased funding for treatment programs.

Most surprisingly, large majorities of voters favored reducing penalties for drug possession. Seventy-three percent said they would support decreasing criminal penalties for possession from a felony to a misdemeanor and using the money saved on prison costs for treatment programs. An even larger number -- 85 percent -- said they believe that people convicted of drug possession should be allowed to remain in the community under supervision rather than being sent to prison.

Funding for the poll was provided by the Drug Policy Foundation, further evidence that Colorado is now in the sights of drug-law reformers. The foundation is funded by billionaire financier George Soros, who helped bankroll California's Proposition 36 campaign and would likely do the same in Colorado. Already, drug-law reformers are targeting Florida, Michigan, Missouri and Ohio for initiative campaigns next year.

"We're looking to continue our initiative campaign in four or five states," says Adam Hollander of the Drug Policy Foundation. "One thing we're finding is that in all the states, there's overwhelming support from the public. Popular opinion is pretty much with us. We don't have to do too much to convince people."

Of course, state ballot initiatives affect only state law. One source of confusion over drug laws is the distinction between federal and state legislation. People who possess or sell drugs can usually be charged under either state or federal law. The U.S. attorney decides whether to pursue federal charges. State laws are enforced by local district attorneys.

Federal drug laws are generally more strict than state laws, with mandatory minimum sentences that can include life in prison. The federal government often decides to focus its resources on particular offenses, like the sale of crack cocaine; as a result, many of those convicted of crack possession are in federal prison. A large percentage of these offenders are black, even though studies consistently show that most cocaine users and sellers are white. However, penalties for the powder cocaine favored by whites are far less severe than those for the crack cocaine used in black neighborhoods, a continuing source of anger in the black community.

"We are totally disillusioned," says Emma Phillips, Colorado coordinator for Families Against Mandatory Minimums, a national organization challenging mandatory-sentencing laws. "We're trying to get enough people together to say this has to change."

Phillips's son Elgin received a mandatory 25-year sentence after the police found a briefcase with more than 100 grams of crack cocaine in his car. Elgin has three children, and his absence has been painful for the family.

"It's not going to take my son 25 years to realize he was running with the wrong crowd," says Phillips. "He knows that. This tore up his home. His children are left without their father."

Belying the stereotype of crack users, Elgin Phillips came from a middle-class family and was running a barber shop in Park Hill when he was sent to federal prison four years ago. Now thirty years old, he calls his children every morning before they go to school.

"It's not like we're saying what our children did was right," says Phillips. "We're just saying give them a second chance."

The impact of the war on drugs on Colorado's black community has been stunning. One in every nineteen black men in Colorado is in prison, a rate that's twice the number for Hispanics and ten times the number for white men. In the state prison system, 43 percent of those behind bars for drug offenses are African-American, even though blacks make up just 3.8 percent of Colorado's population.

Drug-law reformers are hoping that the spread of state initiatives will pressure Congress to change federal law as well. To do that, they'll have to take on drug warriors such as representative Bob Barr of Georgia, who recently described the reform effort as "this subversive criminal movement." President George W. Bush has also opposed the reform movement, appointing drug hawks like former representative Asa Hutchinson to lead the Drug Enforcement Administration. (In one of the more bizarre twists to the ongoing drug war, last spring the Bush administration approved a $43 million grant to the Taliban regime in Afghanistan to support eradication of the opium-poppy crop, something the government undoubtedly wishes it could undo.)

Supporters of the drug war insist that the laws have been successful at reducing drug use and crime in general.

"The notion that the war on drugs is lost is false," says Sue Rusche, executive director of National Families in Action, the largest private anti-drug group in the nation. "Drug use is about half what it was when it peaked in 1979. We reduced drug use by two-thirds among adolescents. I don't call that a failure."

Rusche is deeply suspicious of the effort to reform drug laws, because she believes the real goal of reformers is the outright legalization of all drugs.

"There's been so much deception on the part of these people," she says. "George Soros said in his autobiography he wanted to legalize drugs, but he realized the country wasn't there."

According to Rusche, the Drug Policy Foundation continually holds focus groups to "see how far the public is willing to go. They then frame the issue according to what they've learned in the focus groups."

She describes California's Proposition 36 as a successful effort to con the public. "It ostensibly mandates that addicts be put in treatment instead of jail. If you read between the lines, it legalized all drugs. The court's hands are tied."

National Families maintains an elaborate Web site filled with detailed criticisms of the drug reform movement, even posting lists of the people who made donations to support Proposition 36. The large donations from Soros and two other multimillionaires are highlighted. Rusche also encourages journalists to attend an annual retreat for the media that her group holds in Atlanta, noting that funds are available to cover expenses for some lucky scribes.

Who pays for all of this?

"We receive federal and state grants as well as other contributions," says Rusche.

Reformers are often accused of having a secret agenda to legalize all drugs. But while many of them think marijuana laws should be relaxed, few want to see heroin and cocaine for sale at the local 7-Eleven.

"The choice isn't between the status quo and decriminalization," says Christie Donner. "That's what I've been accused of by legislators. They miss the whole middle ground, which is where most of us are. We're not advocating for decriminalization."

If drug abuse were seen as a medical problem instead of a criminal enterprise, Americans would be both safer and healthier, insists Donner. She cites studies such as one done recently by the RAND Corporation, which estimated that it would cost $21 billion to provide treatment to all of those addicted to a substance, but that doing so would save $150 billion in social costs over the next fifteen years.

While Donner is convinced that public opinion has shifted toward the reformers' agenda, she says that Colorado lawmakers may be the last to know it.

"There's a significant disconnect between legislators and the public on the issue of drug policy," says Donner. "The public wants a more balanced approach, with more resources for treatment and prevention."

DA Ritter also believes the public is losing patience with the war on drugs, but he fears the backlash against current policies is leading to a search for simple solutions that won't work any better than mandatory sentencing.

"Proposition 36 in California was a response to a public that was frustrated with the criminal justice system," says Ritter. "The people in California were demanding that the justice system try something different. As prosecutors, we don't want to get into a situation where we have a Proposition 36 in Colorado."

Ritter fears a similar initiative here would take away important law-enforcement tools, such as the ability to make an arrest for simple possession. He thinks the best solution for drug addicts is a combination of treatment and strict penalties to make sure people stay clean.

"There are people who view the drug problem as something we can incarcerate our way out of, and that's not true," says Ritter. "There are others who think this is just a medical problem; I don't think that's true, either. Studies show the best results come from coerced treatment."

Denver's Drug Court is cited by Ritter as an alternative to the 'lock 'em up and throw away the key' approach that has been in favor since the 1980s. In Denver, most drug offenders who agree to plead guilty wind up in Drug Court, where they're offered treatment in lieu of jail time. Besides counseling for drug abuse, they also receive job-placement and other services. Last year, 2,300 cases were heard in Denver's Drug Court.

"We supervise people much more closely [in Drug Court] than under probation," says Ritter. "Under probation, they have lots of opportunities to fail. We're trying to get them clean and sober."

Statistics show that Denver has reduced the recidivism rate slightly through the Drug Court program. Critics of the court -- including Donner -- say the program is almost doomed to failure because it's trying to play good cop/bad cop and doing neither well. She insists that an effective treatment program can't be run out of a courthouse, where people go to be punished. Instead of helping people to get off drugs, Donner says, the Drug Court's emphasis is on moving as many cases as possible through the system.

"When you have dockets loaded with low-income drug offenders, you have to find a way of processing more and more people through the court," says Donner. "More people go through the system, but treatment funding has not expanded. Treatment is the ugly bastard child of Drug Court. People are not getting adequate treatment there."

Denver District Court Judge Morris B. Hoffman, in an article published last year in the North Carolina Law Review, criticized the Drug Court philosophy.

"By simultaneously treating drug use as a crime and as a disease, without coming to grips with the inherent contradictions of those two approaches, drug courts are not satisfying either the legitimate and compassionate interests of the treatment community, or the legitimate and rational interests of the law enforcement community. They are instead simply enabling our continued national schizophrenia about drugs," Hoffman wrote.

For the past two decades, most politicians have found that voters reward lawmakers who are perceived as "tough on crime." That makes many legislators skittish about reducing penalties, even if they know current policies aren't working.

"The legislature is more conservative than the people are on this," says Gordon. "There's still a fear of being called 'soft on crime.'"

Donner sees Gordon's bill as a first step that's far short of what her coalition hopes for. She notes that the proposed law would apply only to people who possess less than a gram of a controlled substance, a minority of the people convicted of possession every year. (In Denver, an estimated 30 percent of drug cases involve less than a gram of drugs.)

"I think it will have some impact; the question is to what extent," she says.

For now, Donner will lobby on behalf of Gordon's bill. But she makes it clear that her patience is wearing thin, and she believes the public is ready for new tactics in a war that never seems to end. She has no doubt that a silent majority of Coloradans feel the same way.

"This isn't the lunatic fringe; we just got funding from the Catholic Church," says Donner. "The public doesn't feel it's effective to put low-level users who are addicts in prison, but we still don't see a commitment of new dollars to treatment. We're still not getting at the core of dealing with drug abuse as a health problem. People have to be arrested before we respond."

While Colorado's governor and many legislators have been cool to the idea of changing the state's laws, other western Republicans, such as New Mexico governor Gary Johnson, have endorsed the reform movement. Even conservative Idaho recently modified its drug laws to encourage treatment, but Donner is not optimistic that Owens will allow similar changes in Colorado.

"We have a governor who is an opponent of drug-policy reform," she says, adding that she believes the issue may have to be settled at the ballot box.

"It's unfortunate that voters have to do initiatives to enact these policies because elected officials are not responsive to the will of the people."